Union of India Vs. Shri Rati Pal Saroj & Anr [1998] INSC 61 (4 February 1998)
Sujata
V. Manohar, D.P. Wadhwa Mrs. Sujata V. Manohar, J.
ACT:
HEAD NOTE:
The
respondent Rati Pal Saroj was, at the material time, Under Secretary, Union
Public Service Commission as a Grade - I Officer of the Central Secretariat
Service. He appeared for the Civil Service Examination 1985. On the basis of
the results declared the respondent was offered an appointment to the Indian
Administrative Service by a letter dated 31st July, 1986. The respondent was offer of
appointment by his telegram of 5th August, 1986.
Under
the letter of appointment respondent was required to join the Lal Bahadur Shastri
Nation Academy of Administration, Mussoorie as a probationer on 24th August, 1986. A copy of joining instructions was
also enclosed with the letter of appointment. The respondent was, however, not
relieved from the post of Under Secretary, Union Public Service Commission's
letter to the respondent dated 22nd August, 1986
directed the respondent not to hand-over charge of his office or get relieved
as Under Secretary, Union Public Service Commission until he got specific
orders in this regard. Since he was not relieved from his post the respondent
could not join the Indian Administrative Service as a probationer at the
National Academy of Administration, Mussoorie. In 7th September, 1986 C.B.I. registered a complaint against the respondent
and certain other person to the effect that the respondent and these persons
had entered into a criminal conspiracy where by the originally written
answer-papers of the respondent in the Civil Services Examination were
clandestinely removed and substituted by other answer-papers. The respondent
had abused his official position as a public servant and an official of the
Union Public Service Commission in doing so. The appellant, by letter dated 9th September, 1986 withdrew its offer of appointment
to the Indian Administrative Service made to the respondent by the letter of 31st July, 1986 and stated that the same should be
treated as cancelled. The respondent was detained in custody on 10th September, 1986. He was suspended from Central
Secretariat Service with effect from 10th September, 1986 and a departmental inquiry was also
st arted. The respondent was served with a charge-sheet on 21st November, 1986. However, on the application of the
respondent, the departmental inquiry has been ordered to be kept in abeyance
because of the pending criminal proceedings.
The
respondent filed an application before the Central Administrative Tribunal
challenging the withdrawal/ cancellation of his appointment to the Indian
Administrative Service by the letter of 9th September, 1986. The Tribunal held that the offer
could not have been withdrawn after acceptance; if such a step became necessary
the principles of natural justice would warrant giving a hearing to the
respondent. So long as the respondent was not relieved from his previous post
the offer of appointment should be treated as if it were in abeyance. The offer
could not be withdrawn.
The
tribunal, therefore, allowed the application of the r espondent. Hence the
present appeal by the appellant.
The
above facts show that the respondent had been offered an appointment to the
Indian Administrative Service which he had accepted. The respondent, however,
could not join Indian Administrative Service as a probationer within the
prescribed period because he was not relieved from his previous post. Before
the respondent could join the Indian Administrative Service as a probationer,
the appointment is withdrawn or cancelled. Therefore, one thing at least is
clear - the respondent was not a probationer in the Indian Administrative
Service on the date when his appointment was withdrawn or cancelled. He held
the post of a Grade -I Officer in the Central Secretariat Service on the date
when the appointment was withdrawn and he continues to hold that post.
What
is the position of the respondent? Once an appointment order is issued, is it
open to the Government to withdrawn that appointment on bona fide ground before
the prospective employee actually joins service; or is the Government required
to hold a departmental inquiry or give a hearing to the prospective employee?
Obviously, the employer will have no right to hold a departmental inquiry
because the employee has not joined service and is, therefore, not amenable to
the Service Rules of the employer. The only question, therefore, is whether a
hearing necessarily needs to be given to the prospective employee before the
appointment letter can be withdrawn, or whether this will depend on the facts
and circumstances of each case.
Our
attention was drawn to The Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955, framed under the Indian
Administrative Service (Recruitment) Rules, 1954. The regulations provide for
holding of examination by the Public Service Commission and the manner in which
this examination is to be held.
Regulation
11 deals with Disciplinary action. Under this regulation a candidate for the
examination who has been declared by the Commission to be guilty of, inter alia,
using unfair means during the examination may, in addition to rendering himself
liable to criminal prosecution, be labile, inter alia, if he is already in
service under the Government, to disciplinary action under the appropriate
rules. Regulation 13 provides as follows :-
"13.
Inclusion in List Confers no Right to Appointment - The inclusion of a
candidate's name in the list confers no right to appointment unless the Central
Government is satisfied, after such enquiry as may be considered necessary,
that the candidate having regard to his character and antecedents is suitable
in all respects for appointment to the Service." Therefore , even though a
candidate's name may be included in the select list, he has no right to
appointment and the Central Government is entitled to satisfy itself about the
character and antecedents of the candidate before offering him an appointment.
Therefore, it is open to the Central Government not to offer appointment to a
candidate although he is on the select list if the Central Government is not
satisfied about his character or antecedents. There is no question of any
enquiry or hearing at this stage because no right is created in favour of a
candidate whose name is on the select list. If the candidate is offered
appointment and joins, he is governed by the Indian Administrative Service
(Probation) Rules of 1954. Under Rule 12 of these Rules, a probationer shall be
liable to be discharged from service or, as the case may be, reverted tot he
permanent post on which he holds a lien if, inter alia, t he Central Government
is satisfied that he is unsuitable for being a member of the Service or he is
found lacking in qualities of mind and character needed for the Service. The
proviso to this Rule requires that except in the case of a probationer's
services being terminated for failure to pass the re-examination, in all other
cases the Central Government shall hold a summary enquiry before passing an
order.
The
respondent, in the present case, in the strict sense, governed by Regulation 13
of The Indian Administrative Service (Appointment by Competitive Examination)
Regulations, 1955, since the appointment has been withdrawn after the
appointment order was issued an not before. The Indian Administrative Service
(Probation) Rules of 1955 also do not apply to the respondent because he does
not belong to the Indian Administrative Service as a probationer. He is in the
intermediate stage of a person who has accepted the appointment offer but has
not joined the new service. What are his rights? His position appears more akin
to the position of a selected rather than a probationer because he has not
joined the new service when the appointment is cancelled. He continues to
belong to the Service which he had joined and to which he belonged prior to his
present selection. One thing at least is clear - he cannot have higher rights
than a probationer. It is well settled that a probationer's service can be
terminated during the period of probation if he is found unsuitable. No enquiry
is necessary for such termination of the services of a probationer.
In the
case of Samsher Singh v. State of Punjab & Anr. [1974 (2) SCC Page 831], a
Bench of this court consisting of seven Judges, inter alia, held that the
services of a probationer can be terminated when the authorities are satisfied
regarding his inadequacy for the job, or unsuitability for temperamental or
other reasons not involving moral turpitude, of when his conduct may result in
dismissal or removal but without a formal enquiry. An enquiry is necessary only
when the termination is by way of a punishment, and to determine this the
substance of the order and not the from is decisive. The same position has been
re-affirmed in Anoop Jaiswal v. Government of India & Anr. [1984 (2) SCC
369] where the decision on Samsher Singh v. State of Punjab (supra) has been quoted
extensively. Before a probationer is confirmed, the authority concerned is
under an obligation to consider whether the work of the probationer is
satisfactory or whether he is suitable for the post. If it comes to the
conclusion that the probationer is not suitable he is liable to the discharged.
he cannot, in this situation, claim the benefit of Article 311(2).
There
is no reason why the same right to terminate the offer of appointment on the
ground of the prospective employee's unsuitability should be denied to the
Central Government. An employee who has not yet joined the Central Government
Service cannot be put on a higher pedestal that a probationer. If an employee
who has been offered a post by the Central Government is not in a position to
join on the date fixed under the appointment letter and there is no prospect of
his joining for several years to come, the Central Government would be entitled
to terminate the appointment as the person appointed is not available to the
Central Government within a reasonable time of the appointment and hence he is
not suitable. This does not cast any stigma nor is it a punishment for the
prospective employee. If the employee has a right to be appointed by virtue of
his acceptance of the offer of appointment hat right has to be exercised within
a reasonable tome. It is not a right which remains for an indefinite period of
time.
In the
same way, if the Government discovers after the offer of appointment,
circumstance relating to the prospective employee which make him unsuitable for
the post, the appointment can be cancelled. If the circumstances raise a doubt
about the suitability of the candidates for the post or the Service in
question, the doubt should be dispelled within a reasonable time. Otherwise the
employer is entitled to cancel the appointment. This is not by way of a
punishment nor does it case a stigma on the prospective employee.
Learned
counsel for the respondent relied upon a decision of this Court in Sharwan
Kumar Jha & Ors. v. State of Bihar & Ors. [1991 supp. (1) SCC 330] where the appellants were appointed
as Assistant Teachers and were required to join the schools by a specified
date. There was a dispute whether they had joined the s chools or not when an
order was passed cancelling their appointments. This Court said that in the
facts and circumstance of the case the appellants should have been given a
hearing before cancelling their appointments. This decision turns on the facts
and circumstances of the case, especially when there was a dispute as to
whether the teachers had actually joined or not joined. This decision will have
no application to the present case where it is quite clear that the respondent
was not even a Probationer at the time when his appointment was withdrawn.
In the
present case looking to the facts and circumstances it was not necessary to
give a hearing to the respondent. It is urged that the withdrawal of
appointment was on account of the F.I.R. filed against the respondent and,
therefore, the respondent should have been hard and given a opportunity to
present his case before withdrawing his appointment. Or his appointment should
be kept in abeyance till he is found guilty or acquitted. The earlier
correspondence, however, shows that the respondent was unable to join as a
Probationer on the due date because he was not being relieved from his post.
The Central Government thereafter learnt why the respondent was not being
relieved from his post. If thereafter it came to a conclusion that the
respondent was not a suitable person, or that it was not possible to wait for a
long period for the respondent to join, it would be entitled to withdraw the
appointment.
Indian
Administrative Service is a premier administrative service of the Central
Government. All those who are members of the Indian Administrative Service are
called upon to disc harge heavy responsibilities which require on the part of
an incumbent to the post the highest degree of probity, rectitude, and an
impeccable character. If in the facts and circumstances of the present case the
Central Government decided that the respondent was unsuitable to be given a
post in the Indian Administrative Service, the decision cannot be faulted. The
impugned letter merely withdraws the e offer of appointment. It casts no
stigma. So long as the decision is taken bona fide on relevant facts and in the
interest of the service it cannot be faulted.
The
appeal is allowed, the impugned order of the Tribunal is set aside and the
application filed by the respondent before the Central Administrative Tribunal
is dismissed with costs.
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